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Decision
1. The application for leave to appeal is refused.
Introduction
2. By a decision issued May 17, 2013, a Review Tribunal determined that a Canada Pension Plan disability pension was not payable to the Applicant. The Applicant has filed an Application for Leave to Appeal the decision of the Review Tribunal, (the “Application”).
Grounds of the application
3. Counsel for the Applicant submits that the Review Tribunal fell into error by failing to give proper consideration to the Applicant’s medical evidence, including the expert medical opinion of Dr. J. Gouws. The Applicant also asserts that in assessing her ability to work the Review Tribunal based its decision on erroneous facts.
Issue
4. The only issue for the Tribunal to decide is whether, without considering the merits of the application, the appeal has a reasonable chance of success.
The applicable law
5. The relevant statutory provisions are found in ss. 56(1), 58(2) and 58(3) of the Department of Human Resources and Skills Development Act, (the DHRSD Act). s.56 (1) clarifies that there is no automatic right to an appeal. Thus, an Applicant must seek and obtain leave to bring his or her appeal before the Appeal Division. s.58 (3) of the DHRSD Act mandates that “the Appeal Division must either grant or refuse leave to appeal” while ss.58 (2) sets out on what basis leave to appeal is refused. Leave will be refused where the Appeal Division is not satisfied that the appeal has a reasonable chance of success. The jurisprudence establishes that the test for whether leave should be granted is whether there is an arguable caseFootnote 1. The Applicant must raise some arguable ground upon which the proposed appeal might succeedFootnote 2. In Carroll, O’Reilly JFootnote 3 stated that an Applicant “will raise an arguable case if she puts forward new or additional evidence (not already considered by the Review Tribunal); raises an issue not considered by the Review Tribunal; or can point to an error in the Review Tribunal’s decision.
Analysis
6. The Applicant did not put forward any new evidence to support the Application. Neither has the Applicant raised an issue not considered by the Review Tribunal. Instead, the Applicant’s Counsel urges upon the Tribunal the position that the Review Tribunal failed either to assess or to properly assess the medical evidence, in particular the expert evidence of Dr. Gouws. The Applicant’s counsel submits that the medical evidence supports a finding of a severe and prolonged disability.
7. The Tribunal has examined the documents submitted on the behalf of the Applicant. The Tribunal has also considered the decision of the Review Tribunal. The Tribunal finds that while the Review Tribunal did not specifically refer to every piece of medical evidence that was before it, it did conclude that the Applicant’s testimony was “not wholly consistent with the physical and medical evidence.” In the Tribunal’s view, this statement is consistent with the inference that the Review Tribunal did consider all of the medical evidence that was before it at the hearing.
8. While aware that a Tribunal does not have to refer to each and every piece of evidence in its decision, nonetheless, given its importance, the absence of a specific reference to Dr. Gouw’s psychological report and the conclusions therein leaves open the possibility that the Review Tribunal did not consider the report and its content during its deliberations.
9. Notwithstanding this possibility, the Tribunal has considered the question of the impact of this particular medical report on the outcome of the hearing. The medical report was prepared some fourteen months after the Minimum Qualifying Period, and in the Tribunal’s view it likely would have had little impact on the outcome of the hearing coming as it does after the Minimum Qualifying Period. Thus the Tribunal finds that it is not satisfied that the appeal has a reasonable chance of success. Accordingly, the Tribunal would refuse the Application for Leave.
Conclusion
10. The Application for Leave to Appeal is refused.